K M SIRAJ Vs. REGIONAL TRANSPORT OFFICER

JUDGEMENT

(1.) The petitioner, in this Writ Petition, challenges the constitutional validity of Section 15 and also Sub-sections (7) and (8) of Section 4 of the Kerala Motor Vehicles Taxation Act, 1976. The brief facts of the case are the following:

(2.) The petitioner is a stage carriage operator, operating on the route Cheranellur-Fort Kochi, on the strength of a regular permit, granted to his vehicle KL-7/AN-6074. The tax in respect of the said vehicle for the quarter ending on 31.03.2006 has to be paid on or before 31.01.2006. A grace period is allowed upto 14.02.2006, i.e., for operating the stage carriage or keeping it in operation, he has to pay the tax on or before 14.02.2006. If tax is not paid within the said time limit, he will be liable to pay penal interest. Apart from that, non-payment of tax is an offence, punishable under Section 16 of the above said Act. If there is default to pay tax, the same can be recovered, invoking the provisions of the Kerala Revenue Recovery Act. If tax is not paid, the Police Officers and Officers of the Motor Vehicles Department are empowered to detain the vehicle. Section 15 of the Motor Vehicles Taxation Act provides that notwithstanding anything contained in the Motor Vehicles Act, if the tax in respect of a motor vehicle is not paid within the prescribed time limit, the validity of the permit will become ineffective, till the tax is actually paid. Recently, Sub-sections (7) and (8) have been introduced to Section 4 of the Act, as per the Motor Vehicles Taxation (Amendment) Act, 2005 (Act 24 of 2005), which is produced as Ext.P2. Sub-section (7) says that every registered owner or person, having possession or control over a motor vehicle, in respect of which, contribution under the Motor Transport Workers Welfare Fund Act, 1985 is liable to be paid, shall pay the same, before paying the motor vehicles tax. He shall produce proof for payment of the welfare fund dues upto the preceding month at the time of paying the tax. Sub-section (8) thereof provides that no tax shall be collected, unless the receipt for the remittance of welfare fund contribution is produced.

(3.) The petitioner submits, Section 15 and Sub-sections (7) and (8) of Section 4, are ultra vires of the provisions of the Motor Vehicles Act 1988 and various Articles of the Constitution of India. Therefore, those provisions are liable to be struck down. The learned Counsel for the petitioner Shri.P.Ravindran, firstly submitted that the impugned previsions violate the fundamental rights of the petitioner, guaranteed under Article 19(1)(g) of the Constitution of India. They impose an unreasonable restriction on the petitioner's fundamental right to carry on the business of running stage carriages. The Apex Court in Saghir Ahmad v. State of U.P. , held that the right to use highways is a fundamental right. The said right-has unreasonably been restricted by the impugned provisions. Secondly, it was submitted that the impugned provisions are repugnant to Section 81 of the Motor Vehicles Act, 1988 and therefore, void. Section 81 of the Motor Vehicles Act, 1988 provides that the validity of a permit is for a period of five years. Section 15 of. the Motor Vehicles Taxation Act says that if the tax is not paid in time, the permit will become invalid. Since the Motor Vehicles Taxation Act does not have the assent of the President, under Article 254(2) of the Constitution of India, the same is invalid for being repugnant to Section 81 of the Motor Vehicles Act. Thirdly, the learned Counsel for the petitioner submitted that since the Motor Vehicles Taxation Act does not have the assent of the President, the impugned provisions will be hit by Article 304(5) of the Constitution of India, It is contended that since the said Act has been moved in the Legislature without the previous sanction of the President, the impugned provisions are invalid. In the absence of the previous sanction of the President under Article 304 even assuming the restrictions are reasonable, in terms of Article 19(6) of the Constitution of India, the impugned provisions are void ab initio, it is contended. The learned Counsel also relied on the decisions of the Apex Court inAtiabari Tea Co. Ltd. v. State of Assam , Automobile Transport Limited v. State of Rajasthan and also the decision of this Court in Deputy Commissioner of Sales Tax v. Natarajan (1987(2) KLT SN Case No. 37).